Citation Nr: 9924624
Decision Date: 08/30/99 Archive Date: 09/08/99
DOCKET NO. 96-12 787 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania
THE ISSUE
Entitlement to a higher rating for dysthymic disorder with
depression, initially rated as 30 percent disabling from July
1992 and 50 percent disabling from January 1994.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. Fetty, Associate Counsel
INTRODUCTION
The veteran had active service from August 1967 TO March 1971
and from November 1975 to October 1987.
In January 1993, the Department of Veterans Affairs (VA)
Regional Office (RO) in Pittsburgh, Pennsylvania established
service connection for depression, characterized as dysthymic
disorder and assigned a 10 percent rating under Diagnostic
Code 9405. The veteran submitted a notice of disagreement
with the rating assigned, asking for a 100 percent rating.
In November 1993, the RO assigned a 30 percent rating for a
nervous condition. The RO also notified the veteran that his
appeal was considered withdrawn unless he indicated further
disagreement. The record does not reveal that the veteran
indicated any disagreement with that decision. Nevertheless,
unilateral withdrawal of an appeal cannot be performed by an
RO where the rating decision has granted less than the entire
benefit sought. AB v. Brown, 6 Vet. App. 35 (1993).
Accordingly, the appeal continues from the January 1993
rating decision.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
determination of this appeal has been obtained by the RO.
2. The veteran's service-connected dysthymic and depressive
symptoms are manifested by minimal insight, questionable
judgment, possible paranoid delusions, mood congruent
psychotic features, hypomanic episodes, and suicidal ideation
resulting in the inability to obtain or retain employment.
CONCLUSION OF LAW
The criteria for a 100 percent schedular evaluation for
dysthymic disorder with depression are met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.7, 4.130,
Diagnostic Code 9433 (effective as of November 7, 1996);
38 C.F.R. §§ 4.16(c), 4.132, Diagnostic Code 9433 (effective
prior to November 7, 1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
As a preliminary matter, the Board finds that the veteran's
claim for an increased rating is capable of substantiation
and is therefore well grounded within the meaning of
38 U.S.C.A. § 5107(a). A claim that a service-connected
condition has become more severe is well grounded where the
claimant asserts that a higher rating is justified due to an
increase in severity. See Caffrey v. Brown, 6 Vet. App. 377,
381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 631-32
(1992). The Board also is satisfied that all relevant facts
have been properly developed and no further assistance to the
veteran is required in order to comply with the duty to
assist. Id.
Factual Background
In July 1992, the veteran applied for service connection for
depression and for other health problems. He reported that
since active service he had received private medical care for
depression at Oyster Point Family Practice.
In August 1992, the veteran underwent VA mental evaluation.
During the examination, the veteran reported that he had
twice attempted suicide and that he had attempted to wash a
superior officer overboard the aircraft carrier during active
naval service. He also reported three failed marriages. He
said that he worked as a technician in a fishery but had
difficulty communicating with people. He admitted to a
history of drug and alcohol abuse. He currently took
antidepressants. The examiner reported that the veteran was
alert, oriented, cordial, relevant, coherent, and had
adequate and appropriate affect. There were no overt signs
of psychosis, suicidal or homicidal contemplation and he
seemed to be responding well to mental health treatment. The
diagnoses were dysthymic disorder, by history; and, mixed
personality disorder, rule out borderline narcissistic and
passive/aggressive traits. .
Private treatment reports from Oyster Point Family Practice
indicate that the veteran received treatment for several
health problems from 1989 to 1991. A January 1989 report
notes that the veteran had been plagued with revenge thoughts
against another sailor on an aircraft carrier. Other reports
note depression, mood swings, and treatment with Prozac.
As noted in the introduction, in January 1993, the RO
established service connection for depression, characterized
as dysthymic disorder and assigned a 10 percent rating under
Diagnostic Code 9405.
In his June 1993 notice of disagreement, the veteran reported
that he was hospitalized from by VA from June to July 1992
and had received follow-up outpatient care since then. He
reported that he was privately hospitalized at Centre
Community Hospital (Centre) from February to March 1993 and
again during May 1993 and was currently under the care of a
Dr. Carlos Santiago. He indicated that he had not been able
to work since Spring 1992 and that he separated from his wife
because of his problems.
In July 1993, the RO sent development letters to Centre, to
Dr. Santiago, and to Lawrence T. Clayton and Counseling
Associates, Inc.
An August 1993 report from Lawrence T. Clayton and Counseling
Associates, Inc. indicates that the veteran had received
outpatient psychotherapy since March 1993 after his discharge
from Centre. The report indicated that the veteran also
underwent two other hospitalizations at Centre. The report
notes that the diagnoses were major depression, recurrent,
moderate; and alcohol abuse.
The veteran underwent VA mental evaluation in September 1993.
The veteran reported depression and insomnia since active
service. The examiner found the veteran to be alert,
oriented, coherent, relevant, and depressed with an anxious
mood. He was currently taking Paxil, Doxepin, and Ambien and
was attending weekly counseling sessions. The diagnosis was
major depression, nonpsychotic, responding to treatment and
counseling.
The RO subsequently received hospital reports from Centre.
The reports note hospitalization during February and March
1993, again in May 1993, and again in June 1993. The
February-March 1993 Centre report indicates that the veteran
was admitted to the emergency room as a result of an
intentional drug overdose and suicide attempt. He reported
that his wife and child had just left him. He was reported
angry and provocative during much of his hospitalization. He
was discharged in an improved condition with medication in
March 1993. The veteran was re-hospitalized in May 1993 for
a recurrence of major depression and suicidal ideation. He
had apparently again taken an overdose of medication. During
mental evaluation, he was tense, anxious, and depressed. His
affect was appropriate and he was nonpsychotic. He admitted
to suicidal ideation by overdosing. During treatment, he
received Paxil, Ativan, Doxepin, and Dalmane. He was
discharged with a prescription for Paxil, Ativan, Doxepin,
and Dalmane, and Naprosyn. He was readmitted to Centre in
June 1993 for exacerbation of symptoms and renewed threats of
suicide. He was tense, anxious, and depressed and threatened
suicides if jailed for recently violating a restraining order
forbidding any contact with his son. The examiner felt that
the veteran had recently used marijuana and alcohol. His
Axis I discharge diagnoses in July 1993 were major
depression, recurrent with melancholia; alcohol abuse; and,
cannabis abuse.
In November 1993, the RO received a letter from a Congressman
indicating that the veteran desired an increased rating. The
Congressman included a letter from the veteran wherein he
requested that VA award him a 100 percent rating. He also
indicated that he had received Social Security Administration
(SSA) benefits since September 1993, but that this date
should have been since September 1992.
In November 1993, the RO assigned a 30 percent rating for a
nervous condition, effective from July 2, 1992. The RO also
notified the veteran that his appeal was considered withdrawn
unless he indicated disagreement.
In January 1994, the veteran submitted a VA Form 21-8940,
Veteran's Application For Increased Compensation Based On
Unemployability. In the application, the veteran indicated
that he last worked in March 1992 but that he did not leave
the job because of his disability.
An April 1994 VA mental disorders examination report notes
review of the medical history. The examiner noted that the
veteran was tense, dysphoric, anxious, over-vigilant, and
showed increased psychomotor activity. He was alert,
oriented, coherent, relevant, and spontaneous. The diagnosis
remained major depression, recurrent, non-psychotic, and
treated by medications and counseling.
In a September 1994 rating decision, the RO denied a claim
for an increased rating for a nervous condition and also
denied a claim for a total disability rating for compensation
based on unemployability of the individual.
In September 1995, the veteran reported that he currently
received SSA disability and that he currently took Lithium
Carbonate, Paxil, Doxepin, Ambien, and Lomotil. He reported
side effects from those medications. He included a letter
from Dr. Santiago, dated in September 1995, indicating that
the veteran's current diagnoses were major depression,
recurrent, with melancholia; alcohol abuse; and cannabis
abuse. Dr. Santiago reported that the veteran was
chronically depressed and had periods of acute exacerbation
and a fragile adjustment. Dr. Santiago stated "In my
opinion, he is, at this time, totally incapacitated for
gainful employment."
In April 1996, the veteran testified before an RO hearing
officer that he was hospitalized in 1993 because his symptoms
had gotten worse and he attempted suicide. He reported that
he still saw Dr. Santiago about once every two weeks. He
testified that in the last few months he had had suicidal
thoughts on several occasions. He last worked a couple of
years earlier. He testified that he had tried self-
employment but that was not successful. He testified that he
had short-term memory problems and concentration problems.
He testified his depression caused relationship problems with
his girlfriend due to such things as memory loss caused by
his medication. He said that she said he was not dependable.
He testified that he currently took Paxil, Doxepin, and
lithium. He said that the lithium caused thyroid problems so
he had to take thyroid medicine too. He said that he
currently took about 10 pills per day. He testified that his
last job was counting fish but that he could not handle the
job. He recalled that his employer told him that he was
being laid off, but he noticed that they kept hiring people
after he left. He concluded that he had been let go because
he could not do the job.
In June 1996, the RO received numerous records and a
disability determination from SSA. In a July 1993 SSA
decision, the veteran was determined to be disabled from
working beginning in March 1992. The primary diagnosis was
major depression. A secondary diagnosis of personality
disorder was also given. Supporting documents for the
decision include a January 1993 VA outpatient treatment
report noting that the veteran might present as angry, moody,
and inappropriate, that difficulty with the law was a
foreseeable possibility, that his depression could, at times,
be profound, and he was seen as a suicide risk. Another
report included in the veteran's SSA file is a June 1993 VA
psychological examination report that notes that the veteran
had many problems in relating to others including
understanding their communications because of his
idiosyncratic interpretations which have paranoid and
competitive aspects. The examiner concluded that since the
veteran was coping poorly, his depression might be worsening.
His prognosis was poor. The examiner felt that the veteran
might need assistance handling his own funds because of his
impulsiveness. The diagnosis on Axis I was major depression,
recurrent, moderate. An Axis II diagnosis of personality
disorder, not otherwise specified, was also given.
SSA also supplied copies of other VA and private treatment
reports. Of note is a medical assessment form dated in March
1993 and signed by Dr. Santiago wherein he checked a box that
indicates that the veteran was temporarily incapacitated and
that the incapacity precluded employment. On that form, Dr.
Santiago annotated that the veteran was presently depressed,
was incapacitated from working, and noted that with treatment
the veteran should be able to resume work within a few
months.
A February 1997 hearing officer decision and supplemental
statement of the case indicates that Dr. Santiago had not
responded to the RO's request for treatment records. The
decision also indicates consideration of the evidence under
the revised rating schedule.
A November 1997 VA mental disorders examination report notes
a review of the veteran's medical history. The examiner
noted that the veteran had lost his job in 1992 when he
angered a faculty member on the research project where he
worked. The examiner felt that the veteran was chronically
depressed with periods of acute exacerbation. The veteran
appeared to be unable to explain why he could not work, but
he did mention impaired concentration and difficulty
focusing. The examiner reported that the veteran was alert,
oriented, in good contact with reality and showed no signs of
psychosis. His speech was normal, but he lacked insight into
his problems. His mood was mild to moderately dysphoric and
his affect was somewhat stifled and restricted, but not
blunted or flattened. Hypersensitivity and inability to
control his anger were noted. The examiner felt that the
veteran's major depressive disorder was moderate in
intensity. His substance abuse appeared to be in partial
remission. The examiner remarked that the veteran was
definitely socially and occupationally impaired but also felt
that he was not permanently and totally disabled from any
type of employment. The examiner felt that the veteran was
not making enough effort to find work.
In February 1998, the RO received VA outpatient reports
reflecting therapy at various times during 1996 to 1998. Of
note is a November 1997 report indicating that the veteran's
girlfriend had called in to report an acute change in the
veteran's behavior. He had apparently been acting
irrationally and she felt that he might be dangerous. The
examiner requested that the veteran return to the clinic.
Upon arrival at the clinic, the veteran appeared to be
extremely uncomfortable and moved with a lot of pain due to a
recent fall that broke several ribs. He acknowledged
tremendous difficulty with his girlfriend. The veteran
declined admission to the hospital at that time. He reported
that he was employed part-time and might get enough money
from that job to buy a bus ticket to see his family. The
examiner felt that the veteran was not acutely suicidal nor
did he pose an immediate danger to himself. The examiner did
feel, however, that the veteran's poor judgment, impulsive
behavior, and history of substance abuse made his a chronic
risk for self-injury.
An October 1998 VA mental disorders examination report notes
that the examiner reviewed the claims file. The examiner
noted that the veteran attended on-going therapy sessions and
took psychiatric medication. The examiner also noted a
current diagnosis of bipolar affective disorder with
polysubstance abuse. The veteran reported that he changed
therapists because he did not get along with the last one.
He felt that his symptoms had worsened in the recent four
years although he did not know why. He reported several
suicide attempts in the recent four years. He reported rapid
cycling between episodes of mania and depression. He
admitted that he had killed cats in bouts of anger explaining
that when aggravated, he sometimes heard command
hallucinations telling him to kill the cats. The examiner
noted the presence of some paranoid delusion. The veteran's
insight was felt to be quite minimal and his judgment was
questionable. The diagnoses on Axis I were major depression,
recurrent with mood congruent psychotic features and
hypomanic episodes; alcohol abuse in partial remission;
marijuana abuse, ongoing; and, cocaine abuse, in remission.
The examiner assigned a Global Assessment of Functioning
(GAF) score of 50 [according to the American Psychiatric
Association's Diagnostic and Statistical Manual of Mental
Disorders, a score of 41 to 50 is indicative of serious
symptoms, or serious difficulty in social, occupational, or
school functioning, i.e., no friends, unable to keep a job.
See 38 C.F.R. § 4.125 (1998)]. The examiner reviewed the
various diagnoses given and noted that it would be difficult
to parcel out the different aspects of his psychiatric
disorder from his personality disorder and substance abuse.
The examiner felt that bipolar affective disorder could not
be ruled out. All of the above seemed to contribute to
generally poor ability to function, according to the
examiner. He was deemed competent for VA purposes.
In March 1999, the RO assigned a 50 percent rating, effective
January 1994, for dysthymic disorder with depression.
II. Legal Analysis
Disability evaluations are determined by comparing present
symptomatology with criteria set forth in the VA's Schedule
for Rating Disabilities, which is based on average impairment
in earning capacity. See 38 U.S.C.A. § 1155 (West 1991);
38 C.F.R. Part 4 (1998). When a question arises as to which
of two ratings apply under a particular diagnostic code, the
higher evaluation is assigned if the disability more closely
approximates the criteria for the higher rating; otherwise,
the lower rating will be assigned. See 38 C.F.R. § 4.7
(1998). After careful consideration of the evidence, any
reasonable doubt remaining is resolved in favor of the
veteran. See 38 C.F.R. § 4.3 (1998). The veteran's entire
history is reviewed when making disability evaluations. See
38 C.F.R. 4.1 (1995); Schafrath v. Derwinski, 1 Vet. App.
589, 592 (1995). Where entitlement to compensation has
already been established and an increase in the disability
rating is at issue, the present level of disability is of
primary concern. The regulations do not give past medical
reports precedence over current findings. See Francisco v.
Brown, 7 Vet. App. 55, 58 (1994).
The Board notes that during the pendency of the veteran's
appeal, the regulation pertaining to evaluation of mental
disorders was amended effective November 7, 1996. See
61 Fed. Reg. 52695-52702 (1996) (now codified at 38 C.F.R.
§§ 4.125- 4.130 (1998)) (hereinafter referred to as the
"revised criteria"). The United States Court of Appeals
for Veteran Claims (Court) (known as the United States Court
of Veterans Appeals prior to March 1, 1999) has held that
"where the law or regulation changes after a claim has been
filed or reopened but before the ... judicial appeal process
has been concluded, the version most favorable to appellant
should and ... will apply unless Congress provided otherwise
or permitted the Secretary of Veterans Affairs (Secretary) to
do otherwise and the Secretary did so." See Karnas v.
Derwinski, 1 Vet. App. 308, 312- 313 (1991). In that
decision, the Court noted that this view comports with the
general thrust of the duty-to-assist and the benefit-of-the-
doubt doctrines. Id.
Under the former provisions, the evaluation of mental
disorders will be rated as follows: A 10 percent evaluation
is warranted for dysthymic disorder when there is emotional
tension or other evidence of anxiety productive of mild
social and industrial impairment. A 30 percent evaluation
requires definite impairment in the ability to establish or
maintain effective and wholesome relationships with people
and psychoneurotic symptoms resulting in such reductions in
initiative, flexibility, efficiency, and reliability levels
as to produce definite industrial impairment. A 50 percent
rating requires that the ability to establish or maintain
effective or favorable relationships with people be
considerably impaired and that reliability, flexibility, and
efficiency levels be so reduced by reason of psychoneurotic
symptoms as to result in considerable industrial impairment.
A 70 percent evaluation is warranted where the ability to
establish or maintain effective or favorable relationships
with people is severely impaired and the psychoneurotic
symptoms are of such severity and persistence that there is
severe impairment in the ability to obtain and retain
employment. A 100 percent evaluation requires that attitudes
of all contacts except the most intimate be so adversely
affected as to result in virtual isolation in the community
and there be totally incapacitating psychoneurotic symptoms
bordering on gross repudiation of reality with disturbed
thought or behavioral processes (such as fantasy, confusion,
panic, and explosions of aggressive energy) associated with
almost all daily activities resulting in a profound retreat
from mature behavior. The veteran must be demonstrably
unable to obtain or retain employment. See 38 C.F.R.
§ 4.132, Diagnostic Code 9433, effective prior to Nov. 7,
1996.
Under the revised general rating formula for the evaluation
of mental disorders, 38 C.F.R. § 4.130, Code 9433, effective
November 7, 1996, dysthymic disorder will be rated as
follows:
Total occupational and social impairment, due to
such symptoms as: gross impairment in thought
processes or communication; persistent delusions
or hallucinations; grossly inappropriate behavior;
persistent danger of hurting self or others;
intermittent inability to perform activities of
daily living (including maintenance of minimal
personal hygiene); disorientation to time or
place; memory loss for names of close relatives,
own occupation, or own name.-100 percent
Occupational and social impairment, with
deficiencies in most areas, such as work, school,
family relations, judgment, thinking, or mood, due
to such symptoms as: suicidal ideation;
obsessional rituals that interfere with routine
activities; speech intermittently illogical,
obscure, or irrelevant; near-continuous panic or
depression affecting the ability to function
independently, appropriately and effectively;
impaired impulse control (such as unprovoked
irritability with periods of violence); spatial
disorientation; neglect of personal appearance and
hygiene; difficulty in adapting to stressful
circumstances (including work or a worklike
setting); inability to establish and maintain
effective relationships.-70 percent
Occupational and social impairment with reduced
reliability and productivity due to such symptoms
as: flattened affect; circumstantial,
circumlocutory, or stereotyped speech; panic
attacks more than once a week; difficulty in
understanding complex commands; impairment of
short- and long-term memory (e.g., retention of
only highly learned material, forgetting to
complete tasks); impaired judgment; impaired
abstract thinking; disturbances of motivation and
mood; difficulty in establishing and maintaining
effective work and social relationships. -
50 percent
Occupational and social impairment with occasional
decrease in work efficiency and intermittent
periods of inability to perform occupational tasks
(although generally functioning satisfactorily,
with routine behavior, self-care, and conversation
normal), due to such symptoms as: depressed mood,
anxiety, suspiciousness, panic attacks (weekly or
less often), chronic sleep impairment, mild memory
loss (such as forgetting names, directions, recent
events).-30 percent
The veteran's dysthymic disorder with depression is currently
manifested by minimal insight, questionable judgment,
possible paranoid delusion, mood congruent psychotic
features, hypomanic episodes, suicidal ideation and inability
to obtain or retain employment. The record shows that the
veteran may have part-time employment. His recent GAF score
is 50.
Inasmuch as the recent GAF score of 50 does not conclusively
demonstrate the level of impairment, the Board must also look
at other factors. Of special note are Dr. Santiago's two
medical opinions that the veteran has been unable to work and
the SSA decision to that effect. Under the former criteria,
demonstrable inability to obtain or retain employment itself
warrants a 100 percent schedular rating (38 C.F.R. § 4.16(c)
(effective prior to November 7, 1996)), and the Board finds
that this has been demonstrated throughout the appeal period.
Dr. Santiago reported in 1993 and again in 1995 that the
veteran was unemployable because of his psychiatric
disability. This weighs rather heavily in favor of the
veteran's claim. The SSA records indicate that the veteran
has been disabled from working during the appeal period. The
U.S. Court of Appeals for Veterans Claims (then called the
U.S. Court of Veterans Appeals) has held that although SSA
decisions with regard to unemployability are not controlling
for purposes of VA adjudication, an SSA decision is pertinent
to a determination of the appellant's ability to engage in
substantially gainful employment. See Martin v. Brown,
4 Vet. App. 136, 140 (1993). The Board further notes that
substantially gainful employment has been defined as that
which is ordinarily followed by the non-disabled to earn
their livelihood with earnings common to the particular
occupation in the community where the veteran resides or a
"living wage." See Beatty v. Brown, 6 Vet. App. 532
(1994); Ferraro v. Derwinski, 1 Vet. App. 326 (1991).
Moreover, marginal employment shall not be considered
substantially gainful employment. See 38 C.F.R. § 4.16(a)
(1998). In this regard, the veteran's part-time employment
is not considered to be substantially gainful employment.
The Board finds, therefore, that the SSA disability decision
is also persuasive evidence that the veteran has not been
employable during the appeal period. Incidentally, neither
supplemental statements of the case issued since the RO
received Dr. Santiago's reports and the SSA documents contain
any mention of the SSA disability determination or Dr.
Santiago's opinion on the veteran's employability. The Board
must therefore question whether the VA examiner who assigned
the GAF score of 50 was fully aware of these reports
(although he did mention review of the claims file). In any
event, the benefit of the doubt has been afforded the
veteran.
Under the former criteria, the veteran's symptoms do not
demonstrate virtual isolation in the community or gross
repudiation of reality. Nor have the recent VA examiners
felt that the veteran cannot work; however, because the
private physician feels that the veteran cannot work at
present and there is medical evidence of psychotic features
and suicidal ideation, the Board finds that the evidence on
employability is in relative equipoise. Resolving any
remaining doubt in this issue in favor of the veteran, the
Board finds that the criteria for a 100 percent rating for
dysthymic disorder with depression under the former criteria
were met on the date of claim (July 1992). See 38 U.S.C.A.
§ 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet. App. 49,
58 (1991).
Under the revised rating criteria, total occupational and
social impairment, due to such symptoms as: gross impairment
in thought processes or communication; persistent delusions
or hallucinations; grossly inappropriate behavior; persistent
danger of hurting self or others; intermittent inability to
perform activities of daily living (including maintenance of
minimal personal hygiene); disorientation to time or place;
memory loss for names of close relatives, own occupation, or
own name, warrants a 100 percent rating. The veteran appears
to meet these criteria. Although at his recent VA
examination he did not exhibit grossly inappropriate
behavior, and his GAF score of 50 does not conclusively
indicate total occupation impairment, he does appear to have
persistent delusions or hallucination and the medical
evidence suggests that he poses a persistent danger of
hurting self or others. In addition, he testified concerning
his difficulty working at any job, even self-employment.
After consideration of all the evidence, the Board finds that
the veteran's dysthymic disorder symptoms approximate the
criteria for a 100 percent schedular rating under either the
former or the revised criteria of Diagnostic Code 9433.
ORDER
Subject to the laws and regulations governing the payment of
monetary benefits, an increased evaluation of 100 percent for
dysthymic disorder with depression is granted.
J. E. Day
Member, Board of Veterans' Appeals